By Paul Gregoire and Ugur Nedim
A duty of disclosure exists within the NSW criminal justice system, and in all other jurisdictions across the nation, which requires the prosecution to provide the defence with all the evidence it has prior to the trial commencing.
This stipulation exists in the legislative guidelines governing the various state criminal justice systems.
Section 29.5 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) requires the prosecutor to supply the defence with all relevant evidence, especially that which suggests the innocence or guilt of the defendant.
An authority on duty of disclosure, the 2005 High Court case Mallard versus The Queen, saw then Justice Michael Kirby explain that nationally and internationally this practice has been growing, and it’s especially applicable in shining a light on witness credibility and the truthfulness of the accused.
Yet, according to Civil Liberties Australia, because of the abysmal failing of duty of disclosure in this country, the rights organisation refers to the practice as failure to disclose. And CLA is launching a campaign this year in an effort to get this failure to comply turned into positive adherence.
Societywide implications
The duty to disclose is a safeguard against the Director of Public Prosecutions or the police withholding information on an accused if it exonerates them. And in this way, disclosure of evidence ensures that the jury and the judge have an honest understanding of all evidence.
Indeed, according to the Victorian Law Reform Commission this duty of disclosure works to ensure the criminal justice system operating in any jurisdiction does not appear to be “an adversarial system in which investigators and prosecution have the backing of the state”.
In terms of the Andrew Mallard case cited above, he spent 12 years in prison for the 1994 murder of Perth woman Pamela Lawrence , despite his innocence. Mallard, who had a mental illness, described the weapon he used in the killing, however prosecution evidence that discredited this was withheld.
Another example of failure to disclose was the case of Henry Keogh, who spent 19 years in South Australian correctional facilities, after having been found guilty of the 1994 murder of his fiancée Anna-Jane Cheney.
In 2014, the appeals court released the falsely imprisoned man as it was found key evidence came from discredited SA chief forensic pathologist Dr Colin Manock.
While eventually exonerated, David Eastman spent 19 years in an ACT prison for the killing of AFP assistant commissioner Colin Winchester. The innocent man was released after so long, as it was found “a miscarriage of justice” had occurred due to flaws in the prosecution evidence.
And as CLA further points out, while those wrongfully imprisoned bear the burden of a problematic trial outcome, in the end, the whole of society is affected as compensation is paid to victims. Mallard received $3.25 million, Keogh got $2.6 million, while Eastman was awarded $7 million by the courts.
Ethical considerations
Following yet another trial where the prosecution was not forthcoming with the evidence in its possession, Legal Aid NSW solicitor Tim McKenzie, Black Chambers barrister Felicity Graham and Public Defender Chambers barrister Madeleine Avenell SC, produced a paper on duty of disclosure.
Published in September 2020, Ethics: The Prosecutor’s Duty of Disclosure in the Local Court presents 10 points on the efficacy of this criminal justice system requirement.
The first point is that there is no difference in the duty of disclosure between the NSW District Court and the Local Court, and neither is there a distinction between how it applies to police prosecutors or DPPs.
The second point made is that the duty is owed to the court, not the accused. Thirdly, the duty also operates regardless of whether the defence goes out seeking assurances that it’s being followed, while the fourth matter provides what type of evidence the duty of disclosure captures.
These instances include relevant material, that which opens up a new issue, as well as evidence that provides a lead. Evidence provided does not need to be admissible, and it should also include material generated through investigation, witness statements and notices of discrepancies.
All evidence must be disclosed following an investigation and “a broad view of relevance” must be taken to what’s provided. The idea that police and prosecutors can answer that they don’t possess any documented evidence themselves, when it does exists, is not reasonable.
The accused may seek to enforce the duty themselves, via means that include a court order or a stay. If a breach of the duty is discovered post-conviction, the accused can seek remedy and the last point is that defence lawyers ought to be on to whether the duty is being followed early in a case.
Can’t admit guilt
Civil Liberties Australia is currently raising the case of Derek Bromley, a First Nations man, who’s been locked up in a South Australian prison for 38 years, in relation to a body that was found at the River Torrens in the Adelaide CBD.
Bromley can’t obtain parole, because in SA, one has to admit guilt and show remorse to be eligible for it.
According to CLA, the High Court has long refused to look at Bromley’s case, but his appeal is set to go before it later this year.
The High Court is going to deliberate upon whether new medical discoveries that rule out evidence provided by schizophrenic witnesses, as recent studies have found that testimony coming from people suffering this condition can’t be relied upon. And that’s what happened at Bromley’s trial.
Although the court won’t be looking into key evidence that was provided by SA chief forensic pathologist Manock, as Bromley’s legal team didn’t challenge his evidence at trial. And this remains the case, even though it’s since come out that Manock was operating without any qualifications.
Falling behind
In a paper regarding Failure to Disclose, Dr Robert Moles sets out that while jurisdictions overseas, such as the United Kingdom, have been experiencing a rocky road with disclose of evidence as is expected, he highlights that Australia is lagging way behind other comparable nations on this issue.
The US has a conviction integrity scheme that guards against wrongful convictions, while Britain, Norway and New Zealand all have Criminal Cases Review Commissions, which allow for alleged wrongful convictions to be appealed after the regular appeals process is complete.
“As a consequence,” Moles explained, “the USA has identified over 3,000 wrongful convictions in the past 20 years or so. Britain, because of its CCRC, has identified over 550 wrongful convictions.”
“Australia, by comparison, continues to defend cases which are manifestly wrongful convictions and refuses to investigate cases involving the most serious cases of systemic error ever to have occurred in any comparable country,” the legal academic made clear.
Agree 100%.
It’s up to all sides involved in a case to provide any information that would see the procurement of real and proper justice realised.
Yet more than often this goes missing!!
We see sides withholding information that could prove a person’s innocence or guilt.
At times it becomes egotistical, he or she isn’t going to beat me on this and I don’t care what it takes, or organisational or departmental. In other words, we’ve had enough of this person, let’s fix the problem any way we can.
Many an innocent person has suffered due to the above. Many a guilty person has been sentenced to much more than they should have been, due to both the offering and withholding of evidence that should and should not have been tendered!!